The claimant was aged 13 and 9 months at the time of the road accident. She walked into a busy road and was struck by C's truck. She suffered a blow to the head that resulted in severe brain damage. Various witnesses confirmed that E had walked out from between two cars, the nearest one being a Volvo with furniture on its roof.
HELD: On the evidence the defendant had been driving with the flow of traffic at a speed of approximately 20 mph. He was in an ordinary position in the middle of his lane. Had the claimant looked before she had stepped out into that lane, she would have seen the truck coming and stopped. The driver had not seen her at all, his passenger had seen her in his peripheral vision a fraction before the impact.
The question was whether C ought to have seen her, and whether, if he had seen her when he should have done, he might have avoided the accident. To get from the line of the Volvo to the point of impact E had to travel about 1.5m, or taking account of her diagonal path, 2m. At average walking speed, it would have taken her about a second to travel the distance. In a second C would have travelled about 10m. So as E emerged from behind the Volvo he was about 10m away.
Given the furniture on the Volvo, he was not negligent in failing to see her before that. But he was then able to see her as she was directly in front of him. As C did not see her at all the conclusion had to be that his attention had been momentarily elsewhere. A driver was not bound to have his attention fixed in front of him at all times and C might have glanced across at an approaching lorry, but that did not explain how C had entirely failed to see E as he approached her.
He had been aware of the presence of children and had previously had to stop to allow children to cross, so had known that it was an occasion when a careful watch was required. C was therefore negligent in failing to see E. It was likely that if C had seen E as she emerged into his path and blown his horn, braked and swerved, his action and her reaction to the horn would have avoided an impact of serious consequence. C had to be held partially responsible for the accident and E's injuries.
However, the primary cause of the accident was E walking into the road without looking so she had to bear the greater responsibility. C had been driving in a way that was beyond criticism except for the momentary inattention that must have occurred. E's age at the time was a factor to take into account. The appropriate apportionment of responsibility was 70 per cent to E and 30 per cent to C.
Somaya Ehrari (A Child) -v- (1) Martin Patrick Curry (2) Industrial Cladding & Roofing Ltd (2006).  EWHC 1319 (QB). QBD (Jack J) 9 June 2006